LITTLE ROCK — Records that University of Arkansas at Fayetteville officials declined to release for two months regarding a deficit in the school’s Advancement Division “are and have always been public documents,” said a law professor who specializes in Freedom of Information Act law.
“No exception to the Freedom of Information Act applies to these documents,” said professor Robert Steinbuch of the University of Arkansas at Little Rock, who reviewed 88 pages of e-mails, budget summaries and other papers released by UA-Fayetteville to the Arkansas Democrat-Gazette on Friday.
“The legal exception asserted was that these are employee evaluation documents. However, nothing in those documents leads to that conclusion,” Steinbuch said.
The Advancement Division’s shortfall was discovered in July but wasn’t revealed publicly until Dec. 3, when Chancellor G. David Gearhart announced that the school’s chief fundraiser and Vice Chancellor for Advancement Brad Choate, and Choate’s budget officer, Joy Sharp, had been reassigned. The two will not be reappointed after June 30, Gearhart said.
On several occasions, starting on Dec. 5, Democrat-Gazette reporter Tracie Dungan asked for records related to the university’s only formal report on the issue. That report was done by school treasurer Jean Schook.
The newspaper filed a lawsuit Feb. 11 seeking all documents relating to the finance officer’s review of the $3.37 million spending deficit in fiscal 2012 by the school’s Advancement Division.
After the university’s release of the papers, the newspaper announced Tuesday that it is dropping the lawsuit, saying it is not necessary now that the records are public.
“But it’s regrettable that only a scheduled showdown in court would move them to honor their duty to release documents that the taxpayers have an obvious moral and legal right to examine,” Managing Editor David Bailey said Tuesday.
Arkansas’ Freedom of Information Act generally says documents belonging to government agencies, including state-supported universities, are open to the public. The law includes some exceptions.
Gearhart and the university claimed that the Freedom of Information Act would not allow them to disclose the documents because the files were employee-evaluation and jobperformance records.
In its refusals, the university cited Arkansas Code Annotated 25-19-102(c)(1), which says, “All employee evaluation or job performance records ... shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision ... and if there is a compelling public interest in their disclosure.”
In a letter to the Democrat-Gazette on Friday, the university said it had consent from Choate, Sharp and another employee and was “pleased” to share the records.
Explaining how the university decides what documents to release and withhold, university spokesman John Diamond said many records are “easily found and clearly publicly accessible.”
Other times, he wrote in an e-mail Tuesday, “it is necessary to seek input from the custodians of the documents being sought, our legal counsel, and the relevant university officials to first identify all potentially responsive records and then to determine whether any legal exemption applies.”
As required by law, Diamond wrote, the university reviews responsive records individually to determine whether they “are exempt from disclosure, in whole or in part, and whether they must be redacted prior to disclosure.”
Before the university released Schook’s report and related documents Friday, Steinbuch said in a Feb. 1 interview that state law generally requires government documents about finances to be public. He doubted then “that a financial review should ordinarily be exempt from disclosure.”
The university’s associate counsel, Bill Kincaid, had responded that Steinbuch hadn’t viewed the documents, so didn’t have a sufficient basis for his opinion.
“Now having reviewed all of these documents, there is no doubt that they are public documents,” Steinbuch said this week.
He went on to say that even if a person assumed wrongly that the documents were employee evaluations, he believes that those records still would be public under the exemption the university cited.
The records released Friday show “the employees were terminated,” Steinbuch said. “You see statements from the chancellor saying he is not renewing Mr. Choate’s appointment. You also see a terse e-mail that he is giving Choate time to find another job. If you’re giving someone time to find another job, it sure sounds like you’re terminating him.”
Steinbuch referred to a Nov. 6 letter in which Gearhart informed Choate that his appointment as vice chancellor “will not be renewed after its expiration June 30.”
The law professor also points to a later document, written Nov. 20, in which Gearhart tells Choate: “I have been very good to you, allowing you to stay here while searching for a position.”
The newspaper’s attorney, John Tull of Little Rock, agreed with Steinbuch that the university’s reading of the exemption was wrong.
“I believe a court would have found the documents were subject to disclosure,” Tull said Tuesday.
Because the Schook report and other documents releasedFriday relate to spending, it was especially important that they be disclosed, said Steinbuch and Bailey.
The records “reveal a pattern of overspending at UA and the efforts to conceal that activity,” Bailey said.
“Fundraising by definition is an operation with a lot of money changing hands,” Steinbuch said. That places fundraising among the areas of operation for public institutions “that deserve the strictest of public scrutiny, to ensure there is no impropriety.”
The university maintained Tuesday that the Schook report and related documents “were correctly identified as ‘employee evaluation or job performance records’ which are exempt from disclosure under the FOIA, based substantially on the privacy rights of employees,” Diamond wrote in response to the newspaper’s questions.
Employee-evaluation or job-performance records have been defined in attorney general opinions and court decisions as “any records that were created by or at the behest of the employer and that detail the performance or lack of performance of the employee in question with regard to a specific incident or incidents,” Diamond wrote.
“As we have previously explained, the university is legally prohibited from releasing job performance records unless the employees in question give their authorization to disclose them,” Diamond wrote. “That authorization was granted on Friday.”
Front Section, Pages 4 on 02/20/2013